Public procurement: Commission acts to ensure implementation of EU rules in the area of defence procurement

Brussels, 22 March 2012 - The European Commission has today acted to ensure that two Member States (Bulgaria and Luxembourg) comply with their obligations to implement EU rules on defence procurement. The Commission is concerned that they have failed to fulfil their commitments under the Directive regarding procurement of arms, munitions and war material (and related works and services) for defence purposes, and also the procurement of sensitive supplies, works and services for security purposes. If the Directive is not fully implemented in all Member States, companies and taxpayers alike cannot reap the benefits of easier access to a transparent and open - hence more competitive - defence market.

These rules are tailored to the specificities of defence and security equipment and markets (2009/81/EC).

The deadline for implementing the rules in question was 20 August 2011. Timely and correct implementation of the Directive is necessary to achieve this aim. The Commission's request to Bulgaria and Luxembourg takes the form of a reasoned opinion. If the national authorities do not reply satisfactorily within two months, the Commission may refer the matter to the Court of Justice and ask for the payment of financial penalties.

What is the aim of the EU rule in question?

The Directive introduces at European level:

fair and transparent rules to help companies access defence and security markets in other EU countries;

flexibility for contracting authorities to negotiate in detail all features of complex contracts;

the option for contracting authorities to require safeguards (from suppliers) to ensure the protection of classified information against unauthorised access and security of supply so that armed forces receive deliveries in time, particularly in times of crisis or armed conflict.

Sensitive security equipment, works and services which involve access to classified information.

Procurement of non-sensitive and non-military equipment, works and services by contracting authorities in the fields of defence and security is covered by the general public procurement Directive 2004/18/EC.

Both directives are subject to Article 346 of the Treaty, which means that EU countries can exempt defence and security contracts where the rules of Directive 2009/81/EC are not sufficient to safeguard their essential security interests.

How are Member States not respecting this rule?

While the majority of the Member States have either fully implemented the Directive or are finalising the adoption of transposing measures, in these two Member States - Bulgaria and Luxembourg - all of the Directive's provisions still have to be implemented and the transposition process is very slow.